The Ocampo six must face international justice

On February 27 2008, Mwai Kibaki and Raila Odinga signed an agreement which created a new power-sharing arrangement in Kenya, establishing a coalition government between the parties the two men led. This brought an end to almost three months of violence which had ripped the country apart, leaving over 1,000 dead and 300,000 displaced. The violence had mainly run on party lines, and as these parties themselves had built constituencies based on ethnicity, the violence had a haunting ethnic dimension which for many summoned reminders of the violence which engulfed Kenya’s neighbour Sudan just years earlier.

Just under two years after the beginning of the conflict, the prosecutor at the International Criminal Court Luis Moreno Ocampo announced that he wished to summon six Kenyans to the court to investigate them on counts of crimes against humanity. Of those six, one was the former police chief, one was a radio executive and four, including President Uhuru Kenyatta and his deputy William Ruto, had served in the Kenyan government.

Now it seems that the African Union, in the 50th year since its inception, is requesting the transfer of the ‘Ocampo six’ from the ICC to the Kenyan justice system. The AU has claimed in the past that the ICC unfairly targets African leaders, and appears to be attempting to make some political gains by making a stand in this instance. The resolution makes no legal difference to the ICC’s case, but is a clear attempt by African states to stand against what is perceived to be an international justice system which overwhelmingly pursues Africans whilst allowing international human rights abusers from across the rest of the world to live freely.

It is true that since its inception in 2002 all the ICC’s cases so far are from African countries, with all eight current investigations being held focussed on African countries. The first arrest warrant released by the court was for the infamous Ugandan Joseph Kony. No white person has ever been prosecuted by the ICC.

However, the reach of the international justice system at large has certainly not ignored the most serious international crimes committed outside of Africa. There has been an international tribunal set up investigating the Bosnian war, including the ongoing trial of Ratko Mladic, and an extraordinary chamber set up to investigate the crimes committed by the Khmer Rouge in Cambodia. African nations have, on the whole, tended to experience more cases of crimes which fall under the ICC remit than other continents, and hence it is understandable that the gaze of the ICC is centrally focussed there.

It is also the case that the crimes committed in Kenya fall squarely within the ICC remit. The ICC should not be persuaded from investigating cases which appear to fall within its remit and which, were it not for the court, would probably not have been pursued had the court not had the initiative to do so due to the influence and standing of those involved. The problem is not that the ICC is prosecuting too many people committing crimes in Africa, but that they need to be more active in powerful and wealthy nations.

As a concept, international justice is one which had a number of difficulties which sovereign nations have found it hard to overcome. While the UN was founded in 1945 and the Nuremburg trials ending in 1946, it was only in 2002 that it was possible for the ICC to come into being. But the experiences of the past 60 years, and particularly those of the past 25, such as the Bosnian war, the genocides in Rwanda and Sudan, have demonstrated the need for humanity as a whole to attempt to collectively stand against those who commit certain acts.

The African Union might be right that the ICC is pursuing a disproportionate number of cases from Africa, but the merits or demerits of the ICC’s case against the Ocampo six has nothing to do with that. A significant proportion of the crimes committed which fall under the ICC remit are committed in Africa, and Africa needs the ICC to develop into a stronger, more consistent arbiter of international justice in order to protect its people. Discrediting the court, shackling it, displaying open hostility to it does not help; rather than producing a fairer and more consistent imposition of justice worldwide, it erodes the credibility to an organisation which is at least serving some justice.